EFFector Vol. 20, No. 19  May 16, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 423rd Issue of EFFector:

• Action Alert: Electronic Voting Reform Bill Headed to House Floor!
• Universal Music Group Backs Off Claims to Michelle Malkin Video
• Watchdog Organization Battles Bogus Online Defamation Case
• Big Victory: House Affirms Limits on Warrantless Spying
• AP: Acting AG Refused to Reauthorize Spying Program in 2004
• Music Webcasting Bill Gains Momentum
• CA Governor Shrinking From REAL ID?
• Help Protect Free Speech and Bust Bogus Acacia Patent
• Giveline: A New Way to Support EFF
• EFF at Maker Faire, May 19-20
• miniLinks (9): White House Edits to Privacy Board's Report Spur Resignation
• Administrivia

For more information on EFF activities & alerts:
 http://www.eff.org/

Make a donation and become an EFF member today!
 http://eff.org/support/

Tell a friend about EFF:
 http://action.eff.org/site/Ecard?ecard_id=1061

effector: n, Computer Sci. A device for producing a desired 
change.

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 Action Alert: Electronic Voting Reform Bill Headed to 
House Floor! 

A bipartisan bill requiring paper trails for electronic 
voting machines just cleared a major hurdle and could be 
taken up by the House of Representatives next week. Defend 
your right to vote and support H.R. 811, the Voter 
Confidence and Increased Accessibility Act of 2007:
http://action.eff.org/site/Advocacy?id=109

E-voting machines have wreaked havoc and undermined 
confidence in our election system. Despite demonstrated 
technical failures -- including the loss of thousands of 
votes -- nearly half of all states still do not require a 
voter-verified paper ballot. Most of the voting machines in 
operation today haven't been sufficiently reviewed for 
security, and pollworkers frequently do not receive 
adequate training to deal with machine problems.

Along with requiring machines to produce a voter-verified 
paper ballot, H.R. 811 mandates random audits, the 
mandatory availability of voting machine computer code for 
review by experts and litigants, and many other critical 
reforms. The House Administration Committee passed the bill 
last week and approved amendments that further improve it, 
including a requirement that voters be allowed to use paper 
ballots upon request and a more robust ban on connecting 
voting equipment to the Internet. 

For over three years, EFF has been helping Rep. Rush Holt 
move this legislation forward, and support from individuals 
like you has been crucial in garnering an astounding 215 
cosponsors. Hundreds of activists joined EFF for 
Washington, D.C., lobby days in 2005 and 2006, and 
thousands of letter have poured in to Congress.

Now those efforts are paying off, and victory in the House 
is within reach -- take action now and fight for fair, 
transparent elections:
http://action.eff.org/site/Advocacy?id=109

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 Universal Music Group Backs Off Claims to Michelle Malkin 
Video

Online Criticism of Hip Hop Artist Akon Drew Baseless 
Copyright Allegations from UMG

San Francisco - Universal Music Group (UMG) has backed off 
of its attempt to silence nationally syndicated columnist 
Michelle Malkin's online criticism of one of its 
controversial artists after Malkin fought back with the 
help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice 
regarding a recent episode of "Vent with Michelle Malkin" -
- an irreverent daily video podcast produced by Malkin's 
conservative Internet broadcast network "Hot Air." In the 
video posted on YouTube, Malkin called Universal hip hop 
artist Akon a "misogynist," supporting her criticism with 
excerpts from Akon's music videos as well as onstage video 
footage showing Akon with a teenage girl at a nightclub in 
Trinidad.

Despite Malkin's legally protected fair use of the Akon 
footage to support her criticism, UMG claimed that the 
podcast infringed its copyright. UMG submitted a takedown 
notice under the Digital Millennium Copyright Act (DMCA), 
forcing YouTube to pull the episode down. However, with 
EFF's assistance, Malkin filed a counter-notice with 
YouTube, informing the company that she was legally 
entitled to distribute her video. As a result, the video is 
back up on the site, one that has become an important forum 
for political speech of all kinds.

"We're pleased that UMG has backed off its bogus copyright 
claim and stopped squelching Michelle Malkin's video 
criticism," said EFF Senior Staff Attorney Kurt Opsahl. 
"However, it remains inexcusable. UMG's misuse of federal 
law made the video unavailable on YouTube for a full week, 
denying the Hot Air podcast access to YouTube's extensive 
audience during a time when the controversy about Akon's 
behavior was all over the news."

After UMG rescinded its takedown request, YouTube briefly 
continued to block access to the video podcast, claiming it 
included a "terms of use" violation. However, after EFF 
contacted YouTube to discuss the alleged violation, the 
video was quickly returned to public view.

"My Hot Air staff and I are grateful for EFF's invaluable 
aid in forcing UMG to retreat," said Malkin. "Shame on any 
copyright holder who would attempt to use the DMCA to 
intimidate and silence critics. We hope YouTube and its 
corporate partners, like UMG, will think twice next time 
before yanking video commentary and criticism that clearly 
falls under fair use."

Reposted episode of "Vent with Michelle Malkin":
http://www.youtube.com/watch?v=YZL1IHw6ea8

More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

For this release:
http://www.eff.org/news/archives/2007_05.php#005251

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 Watchdog Organization Battles Bogus Online Defamation 
Case

Internet Forum Shielded by Federal Law Protecting Free 
Speech

Washington, D.C. - The Electronic Frontier Foundation (EFF) 
and the American Civil Liberties Union (ACLU) of the 
National Capital Area has asked a Washington, D.C., court 
to dismiss claims against a nonprofit watchdog organization 
and its operators, arguing that federal law and the First 
Amendment protect them from liability in a defamation 
lawsuit.

DCWatch is a government watchdog organization run by 
Dorothy Brizill and Gary Imhoff to monitor Washington, 
D.C., city politics and public affairs. DCWatch's website, 
www.dcwatch.com, publishes articles and columns on local 
politics. Themail@dcwatch.com is an online newsletter and 
discussion forum devoted to reporting, analysis and 
commentary on local issues, past editions of which are 
archived on the DCWatch site.

In articles printed in themail@dcwatch.com, Washington 
journalist Jonetta Rose Barras reported that Roslyn 
Johnson, then Deputy Director of Programs for the D.C. 
Department of Parks and Recreation, had inflated her 
employment and salary history to secure her position. A 
subsequent formal investigation by the D.C. Inspector 
General concluded that Johnson did in fact submit an 
inflated resume and was improperly hired for her position. 
But in a lawsuit filed earlier this year, Johnson claims 
that these articles were defamatory, placed her in a false 
light, and resulted in the termination of her employment 
with the city. In addition to suing reporter Barras, she 
also sued DCWatch and its operators, claiming that their 
Internet publication of these articles made them 
responsible for their content.

EFF and the ACLU of the National Capital Area filed a 
motion to dismiss the lawsuit, pointing out that DCWatch 
and its operators are shielded by Section 230 of the 
Communications Decency Act, which expressly protects 
providers or users of interactive computer services from 
liability in order to encourage robust debate in online 
discussions. The motion also urged the court to dismiss 
Johnson's claims, because the First Amendment protects 
statements about public officials that are substantially 
true.

"The Internet has played host to a renaissance of political 
speech, facilitating discussion on issues of local, 
national, and international importance," said EFF Staff 
Attorney Marcia Hofmann. "It's important that judges resist 
attempts by public officials to shut down online debate 
just because they don't like the speech."

Courts throughout the country have recognized the critical 
role Section 230 plays in enabling open discourse on the 
Internet and have shielded website operators from liability 
for comments made by others.

"The case against DCWatch must be dismissed. Congress has 
given online publications absolute immunity for claims 
based on third-party articles," said EFF Senior Staff 
Attorney Kurt Opsahl. "An Internet intermediary should not 
be liable for what the speaker has said."

"This is a concept that should be expanded into all media: 
books, newspapers, radio and television," said Arthur 
Spitzer, Legal Director of the ACLU of the National Capital 
Area. "A speaker or writer should be responsible for his or 
her words. A bookstore or newsstand should not be 
responsible for the content of what it distributes."

For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras

For more on DCWatch:
http://www.dcwatch.com

For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org

For this release:
http://www.eff.org/news/archives/2007_05.php#005246

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 Big Victory: House Affirms Limits on Warrantless Spying

Last week, the House passed legislation aimed at preventing 
illegal government spying. Attached as an amendment to the 
intelligence budget authorization bill, the legislation 
reaffirms that the NSA's domestic surveillance program must 
comply with Congress' laws.

Meanwhile, the House did not pass a Bush Administration 
proposal that would radically expand the government's 
ability to spy without warrants while also threatening to 
let telecom providers off the hook for assisting in the 
illegal NSA program.

Aggressive Congressional action to stop the illegal spying 
is long overdue, and this is an important first step in the 
right direction. 

To learn about EFF's case against AT&T for illegally 
assisting the NSA: 
http://www.eff.org/legal/cases/att

Tell Congress to not let the telcos off the hook:
http://action.eff.org/fisa

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 AP: Acting AG Refused to Reauthorize Spying Program in 
2004

The AP reports:

"President Bush's warrantless wiretapping program was so 
questionable that a top Justice Department official refused 
for a time to reauthorize it, sparking a battle with top 
White House officials at the bedside of an ailing attorney 
general, a Senate panel was told Tuesday.

"Former Deputy Attorney General James Comey told the Senate 
Judiciary Committee on Tuesday that he refused to recertify 
the program because Attorney General John Ashcroft had 
reservations about its legality just before falling ill 
with pancreatitis in March 2004."

For the whole article:
http://www.abcnews.go.com/Politics/wireStory?id=3175945

On January 1, 2006, the NY Times recounted a similar set of 
events, though Mr. Comey declined to comment on the story:
http://www.nytimes.com/2006/01/01/politics/01spy.html?ex=1179374400&en=cb8221ee6567f18f&ei=5070

During his testimony Tuesday, Comey stated "The program was 
reauthorized without us and without a signature from the 
Department of Justice attesting as to its legality." You 
can read the full transcript of Comey's testimony here:
http://gulcfac.typepad.com/georgetown_university_law/files/comey.transcript.pdf

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 Music Webcasting Bill Gains Momentum

A Senate companion to the "Internet Radio Equality Act" has 
now been introduced and could help save music webcasting. 
Due to a recent ruling by the Copyright Royalty Board, the 
government-set rates that most Net radio providers pay to 
license sound recordings will radically increase. This 
ruling threatens small and non-commercial webcasters as 
well as commercial services like Pandora, and it could take 
away the broad diversity of stations that exists online but 
never has been available through traditional broadcasters. 
If passed, the "Internet Radio Equality Act" would nullify 
the royalty ruling and bring some sensible changes to the 
standards used to set rates in the future. The House 
version was introduced last month.

This bill's introduction has been driven by the massive 
grassroots outrage among webcasters and listeners, and you 
can help keep that momentum going. SaveNetRadio.org is 
among the many great sites that have helped spearhead this 
activism -- go there to learn more and take action now:
http://www.savenetradio.org/

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 CA Governor Shrinking From REAL ID?

While other states are courageously standing up to 
Congress' misguided national ID mandate, California's 
Governor Arnold Schwarzenegger is giving his constituents a 
rather indifferent message.

In response to a constituent's letter (sent through our 
Action Center) urging California to reject implementation 
of the REAL ID Act, the Governor's office simply replied: 
"The issue you have written about is federal in nature and 
not under state jurisdiction. We suggest that you contact 
your United States Senator...."

REAL ID is a federal mandate, but states and ultimately 
each state's residents bear the burden of putting this 
privacy-invasive system into place, including its more than 
23 billion dollar price tag. REAL ID forces states to 
standardize drivers licenses and create massive, 
interlinked databases of your personal information.

The Governor's response seems to suggest that California's 
hands are tied, but that's clearly not the case. Just last 
week, Colorado became the eighth state to officially refuse 
implementation. From Alaska, to Texas, to Pennsylvania, 
states throughout the country are considering similar 
resolutions.

California ought to be leading this rebellion and standing 
up for its residents' privacy. State pushback is already 
forcing Congress to reconsider REAL ID, and if California 
were to refuse implementation, that could be a fatal blow 
to the law.

The Governor is certainly right that you should contact 
your Congressional representatives and make your voice 
heard:
http://action.eff.org/site/Advocacy?id=275

But Californians and residents of all states deserve better 
than a "no comment" from their state officials when it 
comes to an issue of such great importance. Californians 
can tell the Governor to say no to REAL ID by calling his 
office at 916-445-2841 or sending a letter through our 
Action Center:
http://action.eff.org/site/Advocacy?id=290

For this post and related links:
http://www.eff.org/deeplinks/archives/005249.php

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 Help Protect Free Speech and Bust Bogus Acacia Patent

EFF's Patent Busting Project fights back against bogus 
patents by filing requests for reexamination against the 
worst offenders. We've busted a patent held by Clear 
Channel and Live Nation on producing post-concert digital 
recordings, and we've successfully pushed the Patent and 
Trademark Office to reexamine Test.com's ridiculous 
Internet test-taking patent. Now we need your help to 
assist a private law firm in busting one more.

A company called Acacia has claimed a patent on an 
"information distribution system" that amounts to the idea 
of shipping a CD-ROM that contains hyperlinks to online 
resources. (EFF is currently working on busting another 
Acacia patent that covers streaming audio and video over 
the Internet.)

We are looking for prior art that shows the use of this 
technology before 1994. Specifically, we are seeking the 
following items:

1. NetNews CD-ROMs, sold by Sterling Software, preferably 
volumes #1 through #35. These CDs may have been also 
available through CD Publishing Corporation.

or

2. Other CD-ROMs that were distributed in 1993 or earlier 
that contained hypertext content or were installation disks 
for applications that linked to Internet content.

Information about these or similar items is greatly 
appreciated. Submit tips to Philip H. Albert with Townsend 
and Townsend and Crew LLP:
phalbert AT townsend.com

For more on EFF's patent busting project:
http://www.eff.org/patent

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 Giveline: A New Way to Support EFF

Turn everyday purchases into donations for EFF when you 
shop at Giveline. Giveline offers a variety of music, 
movies, electronics, and other items, and gives on average 
15% of products' prices to nonprofits.

Shop at Giveline and donate to EFF:
<http://www.giveline.com/default.asp?v=V072456867>

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 EFF at Maker Faire, May 19-20

If you're going to O'Reilly's Maker Faire on May 19-20 in 
San Mateo, California, be sure to stop by EFF's booth. Grab 
some schwag and chat with us about all things digital 
rights -- we look forward to seeing you!

For more on the Maker Faire:
http://www.makezine.com/faire/

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 miniLinks
The week's noteworthy news, compressed.

~ White House Edits to Privacy Board's Report Spur 
Resignation 
The toothless civil liberties oversight board turns out to 
leave a nasty suck.
http://www.tpmmuckraker.com/archives/003217.php

~ Is Copyright the Administration's Next Domestic Spying 
Tool?
Harold Feld conducts a thought-experiment about how far-
reaching new IP criminalization laws in the US are.
http://www.wetmachine.com/totsf/item/797

~ Gonzales Proposes New Crime: "Attempted" Criminal 
Copyright Infringement 
New criminal IP act trumps even Europe's current ramping up 
of the law.
http://news.com.com/8301-10784_3-9719339-7.html?part=rss&subj=news&tag=2547-1_3-0-20

~ Monday Was Wiretap the Net Day
The FCC's over-extension of CALEA to cover the Net kicked 
in this Monday. 
http://blog.wired.com/27bstroke6/2007/05/reminder_monday.html

~ New Digital Copyright in Hong Kong
Peter Yu leads the battle to truly reform copyright law in 
Hong Kong.
http://jmsc.hku.hk/cms/content/view/242/

~ Copyright Damages Should Not Be Punitive, Says UK 
Government 
The rebellion against statutory damages grows.
http://www.out-law.com//default.aspx?page=8044

~ Microsoft Claims Software Like Linux Violates its Patents
"I have in my hand a list of 615 -- no, 616! -- software 
patents!" says the gently FUDding software giant.
http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/

~ Jonathan Coulton: Music Making the Man
The geek troubadour explains how free distribution makes 
his living.
http://www.nytimes.com/2007/05/13/magazine/13audience-t.html?ex=1336708800&en=1d5b4728dc04dc8d&ei=5090&partner=rssuserland&emc=rss

~ Making All the Right Connections in the IPRED2 Fight
A great story about how activism campaigns make a 
difference.
http://pxfconlanyvette.wordpress.com/2007/05/12/making-all-the-right-connections/

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 Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
  http://www.eff.org/	

Editor:
Derek Slater, Activism Coordinator
 derek@eff.org	       

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